Sharlyn J. Lauby's Blog, page 52

Organizations: State Laws Can Impact Your Hybrid and Remote Work Strategies

Estimated reading time: 14 minutes

(Editor’s Note: Today’s article is a bit longer than usual. So go grab your favorite beverage and take your time reading this one. Because it’s important.)

I don’t talk about state legislation much on HR Bartender because … well, because state laws only impact a relatively small number of people. Well, at least that’s what I used to think. State laws are becoming important to monitor for two reasons:

The growing number of hybrid and remote employees. As more employees have the flexibility to work anywhere, it means that companies need to understand the laws of the state where an employee works and lives.Some states are becoming a bellwether for other states. Regardless of your politics, we’re starting to see states implement legislation while other states watch what happens and possibly follow suit. 

It’s because of these two reasons that I want to share with you a new piece of legislation that will take effect in Florida on July 1, 2022. The Individual Freedom Act (IFA) is an amendment to the Florida Civil Rights Act (FCRA). This law has implications for employers and employees in Florida. And I’m not going to sugarcoat it, some states might consider Florida a bellwether when it comes to legislation. 

This specific piece of legislation is worth paying attention to because it basically says that subjecting an individual to lessons or learnings that promote, advance, or compel someone to believe discriminatory concepts is unlawful discrimination. The law goes on to specify discriminatory concepts to include things like a person’s status as privileged and a person receiving adverse treatment to achieve inclusion. 

To give you some sense of this legislation, I spoke with Mia C. Larson, labor and employment associate at Buchanan Ingersoll & Rooney PC based in Tampa, Florida. Mia focuses her practice on providing a full range of labor and employment counseling and litigation services including state and federal regulatory compliance, employee benefits, labor relations, tax and change management, and employment litigation.

Since Mia is a lawyer, please don’t forget that her comments shouldn’t be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, they should be addressed directly with your friendly neighborhood labor and employment attorney.

Mia, thanks so much for being here. As an HR professional, one of the first things I try to do when I hear about new legislation is understand “Does this apply to me or my organization?” So, let’s start with some definitions. And I understand that these definitions might evolve over time, but let’s talk about what we believe they are right now.  

First, I know a component of  Florida’s Individual Freedom Bill (HB.7)  applies to employment situations. With the popularity of remote and hybrid work, I could see organizations wanting to know if this bill only applies to Florida based organizations OR any organization with employees in Florida?

[Larson] Since the Individual Freedom Act (IFA) amends the Florida Civil Rights Act (FCRA), it appears that any employer that is subject to the FCRA will be subject to the IFA. The FCRA defines an ‘employer’ as any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. 

The more intricate part of this question is whether the FCRA applies to organizations that are not based in Florida, but have employees who work in or are residents of Florida. The Eleventh Circuit directly addressed this question in Sinclair v. De Jay Corp., 170 F.3d 1045 (11th Cir. 1999). In Sinclair, the Eleventh Circuit held that the FCRA definition of ‘employer’ does not require that all fifteen employees be employed in Florida. If Sinclair is applied, an organization is considered an employer for purposes of the FCRA (and thus the IFA) if the organization has 15 or more employees anywhere in the country, regardless of how many of those employees are physically located in Florida. 

You are correct that remote and hybrid work may make this analysis even more complicated. Generally speaking, if an organization has 15 or more employees, and at least one of those employees is either physically present in Florida or is a Florida resident (including Florida employees who work remotely), then that organization can be considered an employer for purposes of the FCRA and, therefore, for purposes of the IFA. In the words of the Eleventh Circuit, ‘the plain and unambiguous language of the FCRA requires only that an employer employ fifteen persons to qualify as a statutory employer under the FCRA. It says nothing about where the employees must work.’ Sinclair, 170 F.3d at 1048.

So, in the context of determining which employees should be counted towards the fifteen-person requirement for an organization to qualify as a statutory employer, the IFA will likely apply to any employer with 15 or more employees (nationwide), at least one of whom is a Florida resident or physically present and working in Florida, regardless of how many of those employees are actually protected by the FCRA. 

The bill also refers to “instruction” in the workplace. Is that only formal classroom training? Employees learn many different ways including online, reading, mentoring, coaching, etc. 

[Larson] The IFA specifically prohibits employers from subjecting any individual, as a condition of employment, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels the individual to believe any of the concepts specified in the law. The phrase ‘or any other required activity’ indicates that the IFA is not intended to be limited to formal classroom training. Instead, the IFA appears to prohibit employers from mandating employees to undergo any required activity, whether that activity is an online curriculum, required reading, mentor-mentee relationship, coaching program, or otherwise, if the activity has the effect of promoting any of the specified concepts. 

The emphasis of the IFA is not on what format the employer uses to present information to employees, but rather on whether the employer chooses to in any way promote one or more of the specified concepts.

Good point about distinction between format and content. Let’s take that one step further and talk about conferences and professional development events that might be paid for by the organization, but they don’t control the content. For example, if I live in Florida and the company sends me to a conference in another state? Or if I’m from another state and attend a conference in Florida?

[Larson] These are questions that the IFA does not directly address, and that will need to be answered over time, assuming the IFA takes effect as planned on July 1, 2022. However, it appears that if an employer sends employees to a mandatory conference that promotes any of the specified concepts, the employer runs the risk that it may be violating the IFA. By contrast, if an employer sends employees to a mandatory conference that does not promote, but objectively presents information regarding the specified concepts, then there would not appear to be any IFA violation. Likewise, if an employer gives employees the option to attend the conference described in either of the first two scenarios but does not make attendance a condition of employment (i.e., there is no consequence for employees who choose not to attend), then there would not appear to be any IFA violation. 

Note, however, that the IFA does not shed much light on what would be considered an ‘objective manner’ of providing a training or instruction on the specified topics such that the training or instruction would fall within the purview of the IFA’s safe harbor provision. Moreover, there may be additional wrinkles to this analysis, particularly if the employer does not (or cannot) control the contents of the conference. For example, what if the host of the conference (not the employer) unexpectedly says something that could be construed as promoting one of the specified concepts? Is the employer on the hook for that? Likewise, is allowing employees to attend a conference but stating that the employer does not endorse the content adequate to comply with the IFA?

The best practice under the IFA appears to be that any employer-facilitated discussion of the specified concepts that is part of a training, instruction, or other required activity must not endorse any of the concepts specified in the IFA. If the training, instruction, or other required activity endorses one or more of those concepts and is mandatory, then the employer runs the risk that it may be committing an unlawful employment practice under the IFA. 

Currently, many organizations have made public statements and put programs in place to show that DEIB(elonging) and DEIBJ(ustice) are important values for them. Do they need to consider re-evaluating their positions and programs considering this new legislation? 

[Larson] This is certainly top of mind for employers evaluating how to comply with the IFA. This also seems to be one of the reasons behind the current lawsuit challenging the constitutionality of the IFA on First Amendment grounds. The IFA does not explicitly prevent employers from publicizing policies and positions on diversity, equity, inclusion, or related topics. If it did, there would probably be a much clearer case for allegations of First Amendment violations.

Instead, the IFA prevents employers from imposing the specified concepts on employees. One question is where exactly the line for impermissible activities is drawn. 

Does distributing an employee handbook containing an anti-discrimination policy run afoul of the IFA if employees are required to sign the handbook? Does the phrase ‘other required activity’ refer more narrowly to activities like trainings that affirmatively present and endorse the specified concepts? 

These are tough questions, and there isn’t a lot of guidance to be taken from the language of the IFA. Such ambiguities are one of the grounds upon which the constitutionality of the IFA is currently being challenged in federal court.

Are there some steps that organizations should take to make sure that their current learning and development offerings are in line with legislation?

[Larson] First, organizations should read and become familiar with the legislation. 

Second, organizations should pay close attention to any legal challenges or changes to the IFA that may occur over the next few months. 

To that end, organizations should consider consulting legal counsel or industry human resources groups regarding their current employee trainings, instructions, and other required activities to determine what changes, if any, should be made to comply with the IFA. For example, it may make sense for some employers to make their trainings that discuss one or more specified concept optional, so that employees who do not wish to attend can opt out of attending (without consequence). For other employers, it may make more sense to keep these trainings mandatory, but review the contents to make sure there is no endorsement of any specified concept, and that any information relating to those concepts is presented in a purely objective manner. 

Of course, the extent to which employer trainings on concepts such as unconscious bias can be objectified is a difficult question. It also may raise issues for certain employers covered by federal laws or other contractual terms that require trainings on diversity and may also restrict or require certain types of content to be included in those trainings. 

Ultimately, an organization trying to comply with the IFA will most likely need to conduct an individualized assessment of its own needs, goals, and risk tolerance to evaluate its own best practices in light of this new law.

In addition to looking at current training programs, are there some steps that HR departments should take in terms of employee handbooks, workplace investigations, etc. to demonstrate compliance with this new law? 

[Larson] Again, the steps needed to comply with the IFA may be different for every organization. For employee handbooks, an objective description of concepts such as unconscious bias might be permissible, but an employer’s ‘Policy to Prevent Unconscious Bias’ might push the line, and requiring employees to sign off to agree to abide by this policy may cross into the realm of impermissible conduct under the IFA. 

Similarly, in a workplace investigation for allegations of race discrimination, an employer may need to balance its need to train in order to appropriately limit any potential liability under Title VII of the Civil Rights Act or similar state law against the risk that such trainings, depending on their contents, may violate the IFA. Again, this assessment comes down to an individual organization’s structure, business needs, and circumstances, and the answer to what constitutes ‘compliance’ with the IFA may be different for every organization.

If organizations don’t want to stop offering certain instruction but they’re willing to let employees “opt-out”, is that acceptable? For example, if an employee was required to attend a certain instructional program to get a certification or be granted permission to work at a client site, could “opting out” have an impact on the employee’s career? Like situations we face now with COVID vaccinations/boosters. 

[Larson] The answer is that it depends. Allowing employees to ‘opt-out’ of instructions that promote concepts specified in the IFA may be a potential way to comply with the IFA. But would this create a risk of singling out employees who can choose to opt out, and could that form the basis for potential claims of discrimination or unequal treatment under the FCRA? 

Similarly, if an organization requires employees to undergo a training with IFA-banned content to earn a certificate or license, this would appear to violate the intent of the IFA. But if an employee can opt out of that training and still earn the certificate or license, then it seems less likely the employer would have violated the IFA. However, if an employee is required to attend classes, seminars, etc. presented by third parties to maintain employer- or state-required certifications, licenses, and so forth, but refuses to do so because of the content, then the employee may risk loss of employment – not for objecting to IFA-banned content, but for failing to maintain required certifications or licenses.

Another question that the ‘opt out’ option raises relates to certain categories of employees, such as those working under federal contracts, who may be required by federal law to undergo certain types of diversity or similar trainings. How can the apparent conflict between federal law requiring certain trainings, and state law that appears to prohibit those trainings, be reconciled? This is yet another difficult question that the IFA falls short of answering, and the answer will likely involve an individual risk-balancing analysis for most employers.

Again, this legal landscape is new and muddy, and the best advice I could give to an organization trying to comply with the IFA is to seek the advice of counsel who can help evaluate the nuances of the particular organization, its employees, and its strategic business needs and goals.

Speaking of evaluating risk, I’m sure this won’t be a surprise, but some organizations take the path of “If we get caught, we’ll pay the fine.” What happens if an organization is found guilty under the Individual Freedom Act?

[Larson] Since the IFA is part of the FCRA, more than a fine is at stake. There are two different enforcement mechanisms at play. 

First, there is a private right of action for employees. Employees who think their employer violated the IFA can file a complaint with the Florida Commission on Human Relations within 365 days of the alleged violation and then, in most cases, pursue administrative actions or civil lawsuits seeking injunctive relief, back pay, compensatory damages, lost benefits, and, in some cases, punitive damages (not to exceed $100,000).The second enforcement mechanism involves the Florida Attorney General, who can bring a civil lawsuit against an employer for damages, injunctive relief, and civil penalties of up to $10,000 per violation when the Attorney General has cause to believe the employer engaged in a pattern or practice of discrimination or otherwise engaged in discrimination that violates the IFA and raises issues of great public interest.

In other words, the potential consequences for failing to comply with the IFA can be high. This should be a factor in organizational risk assessments for evaluating IFA compliance efforts, as should factors like the size and financial resources of the individual organization. 

Because recruiting is tough right now, should employers be prepared to answer questions about their position on the Individual Freedom Act during interviews? 

[Larson] For most things in life, being prepared is better than the alternative. Certainly, organizations should have a plan for how to address these type of questions if they come up. However, what exactly an organization might say in response to such a question may require yet another individualized assessment of the organization’s strategy for complying with the IFA. For example, is a ‘canned’ answer that an employer is committed to complying with all applicable laws sufficient, or does an organization need to provide greater details as part of its strategic recruiting efforts? 

To the extent a more particularized answer is given, how will the organization make sure the employee giving the answer has the requisite understanding of the IFA and the organization’s strategy for compliance? There are many different considerations tied to this question, and again, my advice to every organization concerned about this issue is to seek customized advice on what solution may work best in light of their individual needs and circumstances. 

LAST QUESTION. If employers want to learn more about this new legislation, where can they find information? 

[Larson] The text of the IFA can be found on the Florida Senate website. Employers should stay apprised of current events and any challenges or changes to this new law. The legal world is ever-changing, and one great step that organizations can take to stay apprised of the most up-to-date legal news is subscribing to a legal newsletter.

A huge thanks to Mia for sharing her knowledge. I learned about this new legislation from the Buchanan Ingersoll & Rooney newsletter, so I would recommend signing up for their advisories. 

As Mia mentioned the legal world is constantly changing. An increasing number of states are enacting legislation that impacts employment law. With employees being able to work from anywhere, this means organizations must understand the laws of the places where their employees are working. 

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Working with Insensitive and Selfish Colleagues – Ask #HR Bartender

Estimated reading time: 0 minutes

Regular readers of HR Bartender know that I’m a fan of the free daily eNewsletter Morning Brew. But did you know they launched an HR version, called HR Brew? Well, they did and yes, you should check it out. 

One of the features in HR Brew is called “Ask a Resourceful Human”. It’s where HR professionals answer letters from readers. In a recent edition, there was a reader note from someone who is highly allergic to peanuts and tree nuts. The reader has been open about their allergy, but their co-workers keep eating nuts. 

The HR pro who answered the note was very respectful. They talked about the importance of keeping workplaces safe. But there was one sentence that jumped out at me. “Instead of offering up the observation that your colleagues are disrespectful jerks, I’m going to assume that they don’t understand that your allergy could be life-threatening.” Well, I’m going to say what this very nice HR pro didn’t say. Yes, your colleagues are disrespectful jerks. They are insensitive and selfish. 

This isn’t about nuts. I like nuts. Eat them all the time. Except when someone tells me they’re allergic to them. Then I find a time when I’m not with that person to enjoy nuts. 

As I was reading the article, I felt like there’s a bigger question to address. It was a topic at this year’s Society for Human Resource Management (SHRM) Talent Conference. Are your values aligned with the organization? I mean, if you’re working someplace where your co-workers ignore the fact that you have a life-threatening allergy to something, what else will they ignore? And will the organization allow it?

It’s sad to say but this happens in companies. There’s the situation where the top performing salesperson doesn’t have to follow the rules. Senior leaders who don’t change but expect their teams to. At some point you have to ask yourself, “Is this organization supportive of me as a person?”

Last year, I wrote an article about quitting titled “How Much Frustration Can You Deal With?” And that’s a question that everyone has to ask themselves. Yes, working with people involves frustrations. Most of the time, I’d like to think that those frustrations are minor. Maybe they even become a source of some good-natured laughs. I actually know a few past co-workers with differences that we were able to turn into some fun moments. 

There are also frustrations with co-workers that end up in HR. That’s fine. HR and management are usually able to help the people involved reach a place where they can resolve their differences and move forward. 

But some frustrations don’t end up getting resolved. One of the things we’ve learned over the past few years is that not every conflict can be resolved. Individuals need to be realistic and prepared for that scenario. Hopefully, it doesn’t go there. 

I’m not saying these things because the reader needs to quit their job. Or that the HR person who offered some advice did anything wrong. To me, the scenario does raise the question, “What are you going to do if your colleagues continue to be jerks?” It could be about nuts … or maybe something else. 

The article is a good reminder to think about your working relationships and the limits you’re willing to tolerate. It might also be a good idea to let those really fantastic colleagues you work with know how much you appreciate them.

Image captured by Sharlyn Lauby while at the Wynwood Art District in Miami, FL

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Maybe Third Spaces Are the New Remote Workplaces

Estimated reading time: 3 minutes

I know that organizations really, really, really want employees to return to onsite work. I’ve seen articles – and I’m sure you have too – about CEOs threatening to layoff or fire employees who don’t return to onsite work. I’ve also seen articles about organizations that are turning returning to the office (aka RTO) into something celebratory, with food trucks, concerts, etc. 

I’m not sure if threatening employees is the way to get them excited about being onsite again. But I’m also not sure that a food truck is either. No offense to food trucks. There’s a Halo Donut truck here in Gainesville that I’m dying to check out. 

But at this year’s Future of Everything conference hosted by The Wall Street Journal (WSJ), I learned about a new concept called the “Third Space”, which is being described as a place where we can blend work and wellness. During the event, WSJ shared a short video about it titled “The Office of the Future Might Not Be an Office”. The video does a nice job of giving you a visual. 

After the event, I was still intrigued about Third Spaces, so I found an article on a blog called Third Space Network titled “Defining the Third Space”. This article defines Third Spaces as places that are not home and not work. Think museums, sports complexes, nightclubs, etc. 

My takeaway was that maybe Third Spaces can be where organizations and employees can reach common ground. Hear me out:

Companies want employees to gather. Their case for returning to the office is teamwork, camaraderie, collaboration, etc. Honestly, there’s some truth in it. Organizations might benefit from interactions to generate creativity and innovation. Employees have said how much they miss those things as well. 

Employees want productivity. And what I mean by that is they want an end to wasteful meetings that keep them from leaving the office on-time and spending time with family and friends. Remote work can provide a sanctuary from wasteful practices. It can help employees stay focused. 

So, what if organizations create Third Spaces that accomplish both? They bring people together (what companies want) and provide the focus to get stuff done (which is what employees want). 

Maybe initially Third Spaces could be designated for work teams and, based on the results, expanded to other groups. I could see employees looking forward to spending time in a Third Space. And I think the experience would last longer than a pizza party. Let’s be real, that would have to be some phantasmic pizza. 

The Third Space can also be an option for organizations that are committed to allowing employees work remotely. There will still be times when you want the team to get together. And it’s possible there’s not enough onsite space to host everyone. A Third Space could be a perfect choice.  

Third Spaces allow organizations to use their creativity. A Third Space can be a coffee shop, restaurant, or even a place of worship. Companies might have businesses they would like to support but not sure how to do it. And they don’t want to take a group of employees to a local bar (nor do employees want to go). For organizations wanting to help the economy and their local businesses, a Third Space could provide a benefit and give employees an interesting, fun, and most of all, productive experience.  

I don’t have all the answers here, but I do think there’s room to explore. And for organizations looking for ways to create employee gatherings, this might be a way to start. 

Image captured by Sharlyn Lauby while exploring the streets of Key West, FL

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Learning How to Conduct Job Interviews – Ask #HR Bartender

Estimated reading time: 4 minutes

With “The Great Resignation” and a lot of turnover, one of the situations that can arise is employees haven’t been in their roles long enough to learn everything they need to do. Like conduct a job interview. I recently saw this exact situation in my Morning Brew newsletter, and I wanted to add to the answer that the author provided. Here was the reader’s note:

We’re hiring a person for our team and my boss has put me on the interview panel. I’ve never interviewed a single person in my life and haven’t gotten much guidance. How do you suggest approaching the interview? I have no idea what to ask.

It’s a great question. Just because an interview is supposed to be conversational doesn’t mean that it’s automatically easy and that someone should be asked to do it without proper training. When it comes to interviewing and this reader’s note, I think there are two separate but related topics to consider: 1) learning how to conduct an interview properly and legally and 2) doing your prep before the interview conversation. Here are a few things to consider:

Get training! If you have an HR department, go to them and ask about interview skills training. Many organizations already have something in place. If the session is normally conducted in-person and they’re not planning a session in time for your first panel, see if there’s an online option they can recommend. LinkedIn Learning has several courses and with a library card, you might be able to take them for free. 

Understand the legalities. One of the first questions that people ask me when it comes to interviewing is “What can I ask?” There are illegal questions. There’s a proper way to take notes. Some HR departments have already prepared a list of “approved” questions that you should use. This is also a reason to attend interview skills training prior to your first interview. 

Know your role. In the case of this reader question, they’re being asked to participate on a panel interview. Find out what your role is on the panel. I do agree with the Morning Brew response to coordinate interview logistics with the other panelists. It’s possible each panelist will be asked to share their questions ahead of time, so the conversation has a nice flow.

Check your biases. Prior to reviewing the candidate’s information and planning the interview conversation, take a moment to reflect on your biases. You will need to bring your unbiased self to the interview. And you might need to remind others on the panel to bring their unbiased selves as well. 

Review the job description and candidate’s information. It’s important to know the job that the candidate is applying for. Don’t assume that you do. What I mean by that is sometimes what’s reflected on the job description isn’t what we see every day. So, familiarizing yourself with the job description could be helpful. Also review the candidate’s work experience. If you have any questions prior to the interview – such as, “Can I ask a candidate about this…?”, go talk to HR. 

Writing questions. If someone has not provided you with questions, then you might have to develop some of your own. One of the most effective types of interview questions is behavioral based, meaning that you’re asking someone to share a past behavior. An example of a behavioral interview question is “Tell me about a time when you had to work with someone that you didn’t like.” Or “Tell me about a time when you had to support a company decision that you didn’t agree with.” 

The good news is that the internet is full of behavioral interview questions so do a quick search. Often the question will have a value or quality attached to it. So, if your role on panel is to ask questions about customer service, then you can ask a question like “Tell me about a time when you had to calm an angry customer.”

Practice with a mock interview. Find a colleague and ask them if you can do a mock interview with them. It gives you an opportunity to practice asking questions and listening to responses. Interviews are more than simply asking questions. They’re a huge listening activity. Because at the end, you will need to share your thoughts about the candidate based on what you heard.

Being asked to participate in an interview is a great thing. And learning how to interview is a good skill to have.  But it’s not a learn-as-you-go activity. Interviewing takes training, time, preparation, and practice. Just remember when you were interviewing for a job, you didn’t want someone to fake their way through it or not take their responsibilities seriously. It could have cost you an opportunity. So, you don’t want to do that to someone else. 

Image captured by Sharlyn Lauby while exploring the streets of Washington, DC

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Bookmark This! The Psychological Safety Edition by #HR Bartender

Estimated reading time: 3 minutes

I’ve been hearing a lot about how work has fundamentally changed. And it’s true. People view work differently today than they did even a couple of years ago. Oh sure, there might be aspects of work they view the same. For example, I enjoyed *this* aspect of my job and I still enjoy it. Or I *loathed* this aspect of my work and I still hate it. But people are opening reevaluating the role that work plays in their lives. 

Businesses need to be prepared to deal with this. I saw a recent interview with Howard Schultz, chief executive officer at Starbucks, where he said, “I realize I’m an old-school person and this is a different generation.” The quote is in the context of getting people to return to the office. While I’m not sure that remote work is a generational thing, I do agree that we must acknowledge old-school thinking regardless of the age of the person expressing it. And be prepared to change it. 

But change is difficult. Especially if that old-school thinking was successful at some point. Now, the reason I’m bringing up this shift in work thinking is because I believe that creating change means being open to conversations. Possibly difficult conversations. It means feeling psychologically safe to express our point of view. For the benefit of employees, teams, and organizations. 

Psychological safety is about more than trust. One way to look at it is trust is about others as in, “I trust you.” Psychological safety is about trusting others so I can be myself. 

Does Your Organization Support Employee Psychological Safety

Organizations that are looking to break barriers need to create workplaces where employees feel safe. This needs to be reinforced during the candidate, new hire, and employee experience. It won’t be easy however, the rewards for employees, teams, and organizations are huge.

How to Talk About Psychological Safety in Your Organization

If an employee feels that they can’t speak up, then they need to ask themselves “Why?” and before bringing up psychological safety, do your homework and understand the audience you’re planning to talk with. 

Psychological Safety is Necessary for Workforce Inclusion

Organizations should step back and ask the question, “Is it possible that employees just want to work someplace where they can be themselves?” And if they make more money doing it…well, I’ll let you finish the sentence.

Working through this shift in the fundamentals of work involves everyone. The only way we’re going to get there is by talking it out – giving feedback, getting feedback, compromising, and building consensus. Everyone is going to want options. 

It will take everyone feeling comfortable and safe to start these conversations and to keep them going. Because the thing everyone needs to remember, this fundamental change…well, it’s going to happen again. We don’t know when and we don’t know what will cause it, but I feel pretty confident in saying that this isn’t going to be our last conversation about the role work plays in our lives. So building psychological safety will benefit us today and in the future. 

Image captured by Sharlyn Lauby after speaking at the Flora Icelandic HR Management Conference in Reykjavik, Iceland

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Meditation: Consider Making It a Part of Organizational Wellbeing

Estimated reading time: 9 minutes

A few weeks ago, I shared some information from the latest Society for Human Resources Management (SHRM) report on “Mental Health in America: A 2022 Workplace Report”. One of the statistics from the report indicated that 88% of participants felt offering mental health resources can increase productivity.

I know that organizations are very focused on productivity right now, which means they should be focused on employee mental health and wellbeing. But I’ll also admit, wellbeing is a very broad term that could mean many things and not the same thing to everyone. 

So, when my friend and colleague Dani Fankhauser shared some information about her upcoming workshop on “Meditation for People Who Can’t Sit Still”, I thought this might be an opportunity to share something about a component of wellbeing – meditation. Dani and I have known each other for years and worked on several projects together, so she’s a trusted source on the topic. Thankfully, she was open to my idea for an interview. 

Dani, thanks for being here. Let’s start with a definition. What is meditation? And why is it beneficial?

[Fankhauser] Meditation is reprogramming your nervous system. I’m a longtime yoga teacher who avoided meditation for years, so I like to use an analogy. In yoga, I’d tell students to find the sensation in a pose, and remain there until it got comfortable, then go deeper. We’re looking for the moment where you feel something but it’s not quite pain, and then to just breathe easy with the tension. When you practice yoga regularly, you find issues in daily life come up, like bad traffic or missing your train, and you instinctively start breathing easy like it’s a tough yoga pose. You’ve trained your mind. 

Meditation is like that, but without the pose. What’s the absolutely most challenging ‘pose’ for the mind? To be still. 

Many people think a still mind is the starting point of meditation, but that couldn’t be further from the truth. That’s a very advanced meditation and it takes years to achieve! The outcome of a meditation practice is that you move through daily life, and nothing triggers you, not perceived snubs, or overt insults. 

You can watch the news without getting thrown into wallowing despair, which means you’re able to take positive actions for your community and the world at large. When you sit down to work, you’re clear of worries about whether you fed the dog or what’s going to happen to your friend’s ex who has cancer. 

We don’t even realize, most of the time, how much of a load we are carrying in our brain, things that are out of our power to fix. We work much more productively when we set it all down. Meditation trains us to do that. 

How is meditation different from mindfulness?

[Fankhauser] Mindfulness is a larger category that includes meditation. Other mindfulness practices include yoga, singing in a group, walking in nature, and martial arts. Many activities we already do can be mindful—for me, running comes to mind, also repetitive tasks like washing dishes. One of the easiest ways to get into meditation is to identify your favorite activities that already clear your mind and do more. 

One caveat is that taking in content, like scrolling social media or watching TV, may feel like it clears your mind but it’s shoving more ideas and stressors into your mind. It’s the opposite of mindfulness. It pushes down your own thoughts, replaces them with something else, and is actually adding to that psychic load that mindfulness wants to clear. 

Mental health has become a huge topic recently. Can meditation be an effective part of mental health?  

[Fankhauser] Many therapists, including the two who I’ve worked with personally, use meditation as part of the talk therapy process. The basis of psychotherapy is that the unhealthy behaviors we want to shed are linked to memories stored in our unconscious. Meditation helps to bring these to the surface, much faster, so they can be released – kind of a psychological scalpel. 

Outside of traditional therapy, there is a growing breed of meditation apps that offer meditations for specific mental health issues, including anxiety and depression, but also more specific needs, like for wedding stress or morning gratitude. These apps make mental health care more accessible, like traffic lanes that keep us centered so our issues don’t spiral and disrupt our lives. 

One of the reasons that I wanted to chat is because of your workshop,  Meditation for People Who Can’t Sit Still . Tell us a little bit about it.

[Fankhauser] Before teaching meditation, I was an author and startup founder. Like many ambitious people, my mind was running 24/7 with ideas and I had a massive appetite for everything I wanted to accomplish. One of these projects was writing a novel. But, despite seeing the characters and the whole plot in my head, I was frozen when I tried to put it on paper. Meditation helped me cut through the noise of my self-doubt to write. I saw a pattern between the writing issues and challenges I had as a startup founder and employee. 

My own early attempts at meditation failed, and it often felt like a waste of time, when I already had so much to do. The meditation techniques that worked for me are more obscure – breathwork, vocal toning, something called yoga nidra that involves lying down in the most comfortable position possible. These methods also give your mind something to anchor onto versus throwing you off the deep end and telling you to just stop thinking (which in yoga terms is like telling beginners to simply glide up into a headstand!). 

I knew that ambitious leaders and creatives were missing out on the clarity and productivity that meditation can provide. I created the workshop to teach the absolute most fun meditation formats that quickly demonstrate the benefits – so much you actually want to come back and do it again. 

You mentioned online apps earlier and I noticed that your workshop is offered both in-person and online. We hear a lot about technology being bad for us. Is online meditation effective? What are the advantages and possible downsides?

[Fankhauser] My workshop is designed for teams so there is also a group element. Meditation absolutely works online, which makes it incredibly accessible. The benefit of doing it in person is the accountability. When your colleague is sitting next to you meditating, you’re less likely to think, I could be finishing those emails right now. There’s peer pressure because you’re doing this together. 

And as a bonus, it works both ways. The entire group helps each other focus simply with their presence. With the boost of focus, it’s like becoming an advanced meditator without hundreds of hours of practice. The benefits of a clear mind come to you. I love having teams practice together because afterwards there is also a sense of a shared experience and camaraderie. 

This happens online, too, but it’s less tangible. Meditation online is like watching your favorite band on YouTube versus seeing them play live. 

Speaking of the group format, can you elaborate on the advantages to building a meditation practice with the people that you work with?

[Fankhauser] In today’s workplace, we hold ourselves to a high standard. We want to do good work, and we want our colleagues to know that we’re putting in the time and effort. It can feel shameful to take time for ourselves. Meditation often is put under this umbrella of a personal practice, something extra or frilly. 

The truth is meditation can turn an hour-long task into a twenty-minute task. Work is more efficient and fulfilling when your full mind is engaged. I’m sure everyone reading this has returned to work after a lovely weekend and found they were more productive. 

Meditation can also completely dissolve months of time wasted doing the wrong projects. When you and your team sit in meetings with your full focus, able to listen without emotions driving reactions, you can align on the best path forward. So much of work today is about collaborating, and it’s presence-based, not time-based. Meditation trains us to perform at our full capacity and the result is that good work requires less effort. 

The group workshop also includes a discussion at the end. Participants share how the experience felt for them. This makes the wide array of meditation benefits more concrete. The group also bonds through a non-work topic that’s known to magnify compassion. 

Last question. I can see people not being able to “sit still” for a variety of reasons – work, home, family, etc. How do you suggest to someone that carving out the time for meditation is valuable?

[Fankhauser] We have many very good reasons for not wanting to sit still. The first step is acknowledging this. If I were to ‘guilt’ myself into meditation, I wouldn’t actually be clearing my mind. I would be filling it with anger – that’s the opposite of what I want to do! I would receive none of the benefits. It’s important to define a ‘why’ that is self-affirming.

While many studies show that meditation boosts our vital signs by lowering heart rate and blood pressure, I always tell people that they need to see the benefits for themselves. How we spend our time is so personal. Let meditation prove its worth to you with firsthand experience. That’s also why I like to teach a variety of methods, because each one resonates slightly differently with each of us. 

The most effective times to meditate are right when we wake up or right before we go to sleep, because it sort of builds onto the sleep cycle, which already does the work of clearing our minds and sorting memories. Five or ten minutes at either of those times is a good experiment. Then, write down how it felt. Any little impact on your mood or well-being is like a reward. The reward is what wires our brain to create a habit. 

I also recommend finding a meditation recording of about five minutes that you can listen to at your desk or wherever you are in those moments you’re hit with a stress trigger. I have one on the free app Insight Timer called Vibe Shift. It can very quickly change your mood, and a one-degree route adjustment puts you in a completely different place by the end of the day. Meditation, really, gives us back the reins of our lives, so we are not a victim of our circumstances, but able to choose the state of being we want at any time. 

I want to extend a huge thanks to Dani for sharing her experiences and knowledge with us. And if you want to learn more about meditation, check out her workshop on Meditation for People Who Can’t Sit Still. As a human resources professional, having conversations about mental health and wellbeing can be a little intimidating. We might be saying to ourselves, “What if I say the wrong thing?” or “I’m in no position to help others because I need to get some help for myself.” That’s why we need to have more resources available and more conversations. So, we can as Dani mentions become more aware of the load that our brains are carrying.

Image captured by Sharlyn Lauby while exploring the islands of Hawaii

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Organizations Can End Pay Inequity Before It Starts

Estimated reading time: 3 minutes

The gender pay gap has remained stable over the past 15 years, according to Pew Research. In 2020, women earned 84% of what men earned. And the pay gap isn’t only gender based. In an article on the Society for Human Resource Management (SHRM) website, Black men earned 87 cents for every dollar a white man earned. Hispanic workers earned 91 cents for every dollar earned by white men.  

I know that there are organizations committed to addressing pay inequity. That’s great. I understand that organizations need to deal with pay inequities with current employees. But we also need to deal with pay inequities where they start – during the hiring process. 

At this year’s Society for Human Resource Management (SHRM) Talent Conference, I attended a discussion about pay inequity that was focused on just that – extending job offers with pay equity in mind. Unfortunately, this can be more difficult than it appears because organizations often encourage and reward recruiters who are able to negotiate a job offer with a low starting salary. 

To clarify, I’m not talking about lowballing candidates for ridiculous sums of money. We need to make ourselves aware that negotiating a lower starting salary might not seem like a big deal – especially if the candidate is okay with it – and it could delight a hiring manager – but it could be creating pay inequities.

Let recruiters know that part of their responsibility is to be an equity advocate. Organizations will not fix pay inequity if they encourage and reward recruiters for behaviors that might be contributing to it. This is not the recruiter’s fault. But moving forward they need to understand the new level of expectation.

Diversify the recruiting team. Organizations place a huge emphasis and a lot of resources on finding the best employees. It only makes good business sense to view the group of people responsible for hiring as a team. Obviously, the team would include the recruiter and hiring manager. But also think about compensation, learning and development, payroll, and facilities. These are all functions that are part of a new hire’s onboarding, and they could be a great way to ensure accountability. 

Have a fair and consistent hiring process. Speaking of accountability, I could see a lack of recruiting processes being a contributor to pay inequity. Organizations might be tempted to “streamline” the hiring process if they’re trying to extend an offer quickly. Hiring shortcuts can cause difficulties later. Organizations should define their hiring process based on their talent needs. Then follow it.    

Establish criteria for pay differentials. Pay equity doesn’t mean that everyone gets paid the same. It does mean that HR and the hiring manager should be able to explain why someone is being paid differently. Maybe they have more experience. Or a certification. This is a great reason to have a compensation professional on the hiring team. Define the criteria for which the organization is willing to pay more. 

Provide training to people who extend job offers, including negotiating skills. Organizations should be consistent in who extends job offers. Anyone who does extend job offers should receive training on how to do it. Part of that training should include how to effectively negotiate. Not all negotiations involve playing hardball with a candidate. But it’s important to have a good strategy.  

Pay inequity creates a ripple effect in an employee’s career. Not only is a person making less than their colleagues, but it impacts their ability to grow wealth, invest for the future, and plan for retirement. Organizations should be committed to pay equity not only with their current employees but in their hiring practices. 

Image captured by Sharlyn Lauby while exploring the streets of Gainesville, FL

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The Importance of Silence in Communication

Estimated reading time: 3 minutes

Being able to communicate well is important. When it comes to communication, we often talk about being able to communicate succinctly and clearly. We talk about the value of listening. But one aspect to communication that we don’t discuss often enough is silence.

I was reminded of this in a recent Wall Street Journal article titled “How to Use Silence in Business Meetings”. The article was a good refresher on why silence can be a useful and powerful tool in communication. We’re not talking creepy moments of silence that last for eons. Think of this as just a natural pause in the conversation. 

Silence can allow us to collect our thoughts. Sometimes when we’re looking for the right words to express our feelings, taking a moment to gather ourselves can be helpful. Being able to communicate clearly is key to getting our message across. 

Silence can allow us to calm our message. If you’re feeling anxious, excited, frustrated, agitated, etc., taking a moment of quiet to collect ourselves can be helpful. This doesn’t mean we have to not express our feelings. In fact, taking a moment of silence could help us communicate our emotions better. 

Silence can help us reduce the “ums”. Many of us pepper our conversations with “ums”. Often an “um” is a way to fill in space until we figure out what we want to say. Instead, we can take a brief moment to think out what we want to say and how to say it. This could reduce the number of “ums” we use. 

Silence can allow others to join the conversation. For example, a moment of silence during an interview might encourage a candidate to add something to their story. Or during a meeting it might allow a participant to ask a question. 

The point is that communication doesn’t involve talking all the time. 

And we can take this messaging about silence to the written word as well. We need to be able to effectively communicate in writing. We need to be able to comprehend what others write. And we need to know when to put some space – in this case silence – in the conversation. No, this doesn’t mean ghosting someone. But it also doesn’t mean that we need to answer everything right away. For instance, I’m starting to see more people acknowledge an email with a note about when they will respond in full. I think it’s great. Set expectations and manage them appropriately.

Communication is and will continue to be important. Reminders about effective communication could be timely. Even the best communicators might find a refresher helpful. 

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HR Compliance: Get Back to Basics During the Great Reset

Estimated reading time: 5 minutes

(Editor’s Note: Today’s article is brought to you by  our friends at i-Sight , a leading provider of case management solutions that helps companies manage the process and workflow of investigators collecting and analyzing information related to a case, with the goal of resolving issues, managing risk, and identifying opportunities for improvement. Enjoy the read!)

We hear the term “getting back to basics” quite often and we’re hearing it a lot lately. Regular readers of HR Bartender know that I’m a fan of consulting the dictionary, so I did a quick search to see what “getting back to basics” means. The Collins Dictionary defines it as “concentrating on simple, important ideas or activities.”Getting back to basics can be an opportunity to refocus and streamline. It can be ways to deliver great work with fewer steps. To become more proactive, especially if the organization feels they have been very reactive lately. Getting back to basics can help us spend time on things that are directly aligned with the business. 

The reason I’m bringing this up is because now is a great time to evaluate HR compliance processes. If we step back for a second, let’s look at what’s going on right now. 

From a business perspective, organizations are redefining the customer experience. I’m not saying that’s bad. But companies are trying to set new expectations with customers. 

I’m hearing an increasing number of people talk about spending some or all their time back in the office. Even employees who are 100% remote are talking about going in for special company events. So not only are companies setting new expectations with customers, but they’re setting new expectations with employees. While we’re going through this reset, it only makes sense to examine the way we’re doing things in HR.

Resetting Expectations Can Increase Productivity

I ran across an article in Harvard Business Review that said the average company loses 21% of its productive power in time-wasting interactions. Even though the article is a few years old, I’m not sure that the statement is a surprise. How much time is HR spending on paperwork, administration, and compliance that could be utilized somewhere else?

The good news is that technology tools can help HR departments get back to basics. For example, here are three compliance areas that case management software can support. 

COMPLIANCE WORKFLOWS. One of the most important aspects of HR compliance is just remembering everything. There are so many laws, with unique reporting requirements. Case management software provides HR departments with the compliance information they need and alerts to make sure they stick to reporting deadlines.

CONFIDENTIAL REPORTING. In a survey conducted by the Yale Center for Emotional Intelligence, nearly one in four people felt pressured to do things they know are wrong. This could be anything from a rule violation to lying to an unhealthy work environment. Not only does this open the organization up to risk, it’s just wrong. Case management software can provide organizations with a place for employees to express their concerns, through easy-to-use reporting mechanisms. 

CONSISTENT DOCUMENTATION. While HR departments need to be prepared to conduct investigations and document concerns, it’s not something they do all the time (hopefully). That’s why it’s important to have a consistent documentation process in place. Case management software can help HR departments document incidents consistently and evaluate organizational risk.

The HR Benefits of Case Management Software

At the beginning of this article, I mentioned getting back to basics. That’s what I believe the benefit of case management software is for HR departments – deliver great work with fewer steps. Case management software has the forms and workflows ready for us when we need them. We can deliver compliance without extra steps and feel confident that we’re not missing anything. 

A technology partner can guide us toward becoming more proactive. This might sound a bit counterintuitive but hear me out. One of the challenges that HR departments have with receiving reports of employee concerns is not getting them. Employees are sometimes reluctant to come to HR. An online confidential reporting system can give employees a way to express an initial concern. Then HR and the employee can figure out how to connect in person. Having a way for employees to come to HR without walking into the HR office – at least initially – could be a relief for an employee. And it allows HR to deal with concerns before they get out of control. 

Finally, having a software solution helps with investigations and employee concerns, and allows HR to focus on activities like recruitment, engagement, and retention. Things a software program can’t do. 

Let Technology Do What It Does Well

One of the things I’ve learned over the year is just because I can do something, it doesn’t mean I should. Sometimes it’s not the best use of my time and effort. 

The same idea applies here. Can HR departments do compliance? Sure. But, with all the other things on our plate, is that the best way to spend your time? Hmmm…I don’t think so. Which is why now – when everyone is resetting expectations – it’s time for HR to get back to basics and reset how they’re going to do compliance.

Case management software can help HR departments spend their time on activities that have a stronger alignment to the business and the bottom-line. If you want to learn more about case management software, request a demo from our friends at i-Sight and download their buyer’s guide. 

P.S. Speaking of stronger organizational alignment, I’m excited to be partnering with i-Sight on a webinar about the “5 Ways to Increase Employee Trust for Less Turnover and Fewer Incidents”. The date is Wednesday, June 29, 2022, at 2p Eastern. And as always, if you’re already booked that day, sign up anyway and get the recording. It’s going to be an interesting discussion.   

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10 Top Recruiting Trends that Organizations Need to Know

Estimated reading time: 3 minutes

One of the best sessions at the Society for Human Resource Management (SHRM) Talent Conference was a panel discussion focused on top recruiting trends. What I really liked about this session was the balance between the “basics” – trends that shouldn’t be a surprise, but we need to constantly be reminded about their importance – and what I’ll call “new” trends that we might not be very focused on today but need to consider for the future.

Getting the Basics Right

Prioritize what HR can do. There’s lots of talk about HR teams being stressed and burned out. We need to take care of ourselves, so we can do our best work. Let technology do what it does best. This goes with #1. There’s so much great recruiting technology available today, organizations should prioritize what can be automated and what needs to be done in-person. Make the candidate experience great. The competition for talent is huge. Be transparent with candidates about how the process will work. Execute the process well and preferably with fewer steps. Applying for a job should be easy. The longer it takes, the greater the chance that someone will just give up. Make sure your applicant tracking system is mobile-friendly.  Maximize employee referrals. While it’s not advisable to have referrals as an exclusive recruiting source, it can still be a great source. Do the math by looking at cost per hire versus the cost of hiring an external recruiter. Consider paying the referral bonus a little faster. 

Keep These New Trends in Mind

Do well by doing good. This isn’t optional anymore when recruiting. Candidates want to know that they’re working at a company they can be proud of. That’s not just in the product or service the company provides. It’s how the organization supports community. Tap into untapped talent. Build partnerships with organizations that can help the company find talented veterans, older workers, people with disabilities, and individuals looking for second chances. Great talent exists, but we need to look for it.   Tell your story before others do it for you.  Branding is so important right now . Use social media to tell your company’s story and share company values. Give employees a realistic job preview so they’re not surprised when they start.  Adopt a “screening in” versus “screening out” mentality. Think about your recruiting and selection philosophy. Is it possible to hire for ability and then give someone the experience?  Demonstrate a commitment to internal mobility. This aligns with #9 above. Employees want to know that they have a future with the organization. Talk about internal mobility. Make the process fair and equitable. 

BONUS: There’s one more trend that I heard during the session that I think organization’s need to be very focused on and that’s speed to first paycheck. Some organizations are promoting same day pay and flexible pay options as a way to attract talent. I can see this being very popular for candidates. 

Finding and hiring the best talent is going to be a priority for the foreseeable future. Honestly, finding and hiring the best talent has always been a priority. Now, there’s increased competition and that can change things for recruiting. Even companies that have enjoyed a steady stream of applicant flow might find themselves working harder to attract talent. That’s why it’s important to get the basics right and look for ways to stand out in this very crowded market.

Image captured by Sharlyn Lauby at the SHRM Annual Conference in Las Vegas, NV

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